In the history of mankind, many republics have risen, have flourished for a less or greater time, and then have fallen because their citizens lost the power of governing themselves and thereby of governing their state. TR


New Evidence Obama May Have Turned Roberts

Last week I wrote that it seemed possible that President Obama had successfully pressured Chief Justice John Roberts into switching his opinion and voting to uphold Obamacare.

Now there’s further evidence from CBS that this may indeed have occurred.

CBS reports that Roberts did in fact change his opinion, and that he was indeed susceptible to outside pressure – more so than some of the other justices.

From the story:

Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold . . .

In the court’s private conference immediately after the arguments, he was aligned with the four conservatives to strike down the mandate . . . Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.

Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.

There were countless news articles in May warning of damage to the court – and to Roberts’ reputation – if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

I have trouble explaining Roberts’ opinion other than as a move in response to outside pressure. Obama helped launch this pressure by saying it would be inconceivable for the Court to strike down the law. Likely he would have made Supreme Court bashing a centerpiece of his campaign.

Roberts knew he’d have to take the heat. And so, for this reason perhaps, he got out of the kitchen.

124 thoughts on “New Evidence Obama May Have Turned Roberts”

  1. To think that a co-equal branch of the government would succumb to outside pressure, be it from the WH, POTUS himself, or the media is terrifying. This would indicate that we no longer have a constitutional republic, but rather a government, in all branches, that is run by the rule of the mob.

    For CJ Roberts to switch his vote simply to protect his legacy is tantamount to treason against the republic. I hope that there is some form of investigation into the matter, whether it is from some journalist with balls, or the Congress, to determine if in fact Roberts was coerced into changing his vote by means of threat or promise.

    God save the Republic!

      1. Bwahahahaha! Good God… you get one decision that doesn’t go your way and suddenly there’s an asteroid heading towards earth? Is this the same John Roberts you conservicans were creaming yourself over just a few years ago?

        For crying out loud, just read the decision. The reasoning for and against the application of the tax/penalty is equally sound. Roberts is correct to say that something called a “penalty” on paper can, in fact. be a “tax” in principle. And if you doubt the need to read between the lines in matters involving the hated word “tax”, just look at the obnoxious lengths Dems and Reps are resorting to to have their way in the press. The Democrats still won’t acknowledge that Roberts used the “T” word. Meanwhile, Republicans are going to need thorazine to deal with their schizophrenia in denying that now it may be said that Romney’s two signature achievements as governor were fathering ObamaCare AND raising taxes!

        I can’t speak to “pressure” on Roberts, but the fact of the matter is, after a generations- long battle to actually apply some sort of universality to health care in this country, it would take a pretty ballsy–dare I say, activist- Supreme Court to strike it down based on a slippery bit of terminology.

        1. Your logic becomes flawed at the statement “universality to healthcare”. That is what we all disagree with, the one size fits all, government knows best approach to something as personal as our healthcare. If I believe that accupunture helps me, should I make everybody pay for that? What if I believe that leaches are still a viable remedy? Should everybody pitch in for that, too? When you have a third party determining what I should buy, or what’s best for me, that’s where I draw the line.

          Politically incorrect or not, this law should have been ruled inconstitutional.

          1. Robin-

            I don’t think your comparison of specific healthcare treatments really obtains in the matter of health insurance, which is the matter at hand. The question is how to make access to the medicine we all know DOES work— vaccinations, x-rays, heart surgeries–available to everyone at a realistic price that does not lock out tens of millions of citizens.

          2. Death Ray: Yes that all sounds good….but in reality and actuality, that’s not what is going to happen. Here’s what will happen. Since there are many provisions in this mess of a health killing package that will judge physicians for not listening to the “panel” that will be decided, many of the doctors have vowed to STOP PRACTICING. Millions of people will now be vying for your doctor only now there will be less doctors. POINT ONE OF TERROR

            Ok, the second thing, this panel. (and this is all right in it, you can read it…I have) This so called death panel is exactly as it sounds. It will be comprised of about 14 medical professionals that will not only write the regulations that the doctors must go by (standardized treatment for everyone regardless of the situation) but it fines them for veering away from it. The first time its a ridiculous fine, the second….they go to prison. Soooooo this is why the doctors are quitting. No one wants to practice under conditions like that.


            Once you reach one of hte following,, your life has a dollar sign value: 1. age 2. illness ………..if you are 70 years old and you need a hip replacement, you aren’t going to get it because you don’t have enough “viable years left” to justify the money that needs to be spent. if you are sick……..and you need heart surgery, you will be turned down because you aren’t viable enough to spend the money on. Wait till you bleeding heart liberals face that one…..I have privatized insurance….so this doesn’t touch me.


            Now, you call and get a doctors appt the next day. If you can’t wait that long, you go to the ER. ER waits will become days if not weeks. You might get a doctor’s appt in 6-8 months if you’re lucky.

            And the final point is… one has said who pays for this trillion dollar disaster that the muslim in chief voted in.

            No one gets anything. the bottom line is to the 20 and 30 somethings………..THERE IS NO FREE LUNCH. If you are given something free, someone has to pay for it. And no one in this country can afford odumbocare.

          3. My goodness! And all this time I thought that calling Canada, England and France “Helltopia on Steroids” was just right wing histrionics. Thanks for setting me straight!

            (By the way, if you ” have privatized insurance….so this doesn’t touch me,” then what are you so upset about?)

        2. Ohh shut the hell up you liberals are still crying about the 2000 election because the supreme court sided with George Bush when Al Gore was the one who decided to take it to the damn courts in the 1st place. So now you liberals love the supreme court now that it finally made a decision that fits your agenda. Because you know if Roberts would’ve stuck to his guns and stayed with his original decision the 1st 3 years of Obama’s presidency would’ve been a wash.

        3. You miss the point of my concern. The ruling aside, my concern is IF Roberts was coerced into changing his mind to vote with the liberals, or he did so to protect his legacy as CJ, then there is a serious problem with the concept of co-equal branches of government.

          The Court is appointed vs. elected to keep it independent of ANY outside influences, and therefore should be able to rule without concern for others opinions. When Roberts made the convoluted and huge stretch to call the penalty regarding the individual mandate a tax vs. a fine or penalty, and was known within the Court to have originally sided with the conservatives on the issue it gives one pause to wonder what the hell happened.

          If Roberts was threatened or in some other fashion pushed to the left on this decision, then there is a serious problem. While I do not agree with Roberts stretch of imagination regarding the mandate, I am more concerned about the integrity of the Court than anything else.

          To put it in terms you might understand, it is not unlike the husband who threatens his wife with some form of blackmail or violence if she does not perform certain acts. It is morally and ethically wrong, and needs to stop and NEVER happen.

          1. “Hmm”?

            Hey, if you are in the confidence of any SCoTUS law clerks, by all means dish.

            Shofar, your implication that Roberts, who until one heartbeat ago was the darling of the right, was blackmailed, intimidated or in some other way manipulated by anything other than his conscience is worthy of Glenn Beck, but either show some proof of this or admit to your sour grapes.

            In fact, the evidence seems to indicate that there was severe arm-twisting coming from the Court’s right wing. You’d almost think they had an agenda.

          2. The conservative wing of the Court does have an agenda, and that is to keep this country true to what the founding fathers had intended the Republic to be. One were there was limited government, and that the people maintain the majority of power. Obamacare and many of the other far reaching efforts on the part of the federal government (current and past administrations) to expand the power of the federal government and to pick and chose what laws will be enforced is not what the founders envisioned.

            If Roberts truly had a last minute change of heart regarding the individual mandate, I would think that his majority opinion would have been less convoluted. In one area he strikes down the government’s argument that the feds have the right to require individual’s to have and maintain health insurance, ie the Commerce Clause, and then affirms the law by by saying that the fed has the right to tax an individual for failing to do something. Despite attempting to rationalize his thinking via the citing of precedents, I find it very difficult to understand how on one hand you can strike down a law (the Commerce Clause) and on the other hand affirm by way of taxes (his reasoning, and the Solicitor General’s argument).

            By Roberts own words, the failure to pay the “tax” is not a criminal offense, and therefore would not be harmful to the individual’s reputation or freedom. However, it still imposes a burden on the individual for not doing something. If I chose not to wear shoes, and impale my foot on a nail, that is my own fault and responsibility. I am the one responsible for taking care of my injury, and the subsequent costs. If I have insurance, then I may go to an ER and get treatment, if I do not, then I will clean out the wound with alcohol, antibiotic cream and a band-aid. But to stretch the notion that their is some intrinsic “shared” responsibility across the nation for health care is anathema to the principles that the founders held.

            The US healthcare system needs reform, but not in the form or fashion that is envisioned under Obamacare. To follow in the failing footsteps of Europe will only bring about the same type of collapse that Europe is now facing. The best, simplest and fairest way to reform healthcare is to get the damned lawyers out of things, reform tort laws (which will reduce the cost of medical malpractice – the biggest cost to doctors and hospitals), allow for interstate purchase of insurance, establish what have been called medical co-ops to allow individuals and groups to voluntarily share the burden of medical costs and remove from the majority of the picture the federal government.

            Yes, there still needs to be a “safety net” for those that, through no fault of their own, have serious medical problems, and to ensure that the elderly are protected. But this one size fits all answer is not an answer.

            Roberts himself cites the CBO’s report that this tax or penalty will raise $4 billion by 2017. This is $4 billion taken out of the market place and paid into the black hole of the government’s coffers. While in this day and age of trillion dollar deficits, $4 billion is nothing, it is still monies taken out of the economy that could be used to help drive the economy.

            Prior to sharks like John Edwards realizing that they could make millions of dollars off the backs of hospitals and doctors via “class action lawsuits,” insurance and a visit to the doctor did not require the taking of a second mortgage. It has been the direct result of runaway greed on the part of lawyers, and an ever expanding regulatory bureaucracy (the FDA) that has caused the cost of medical care to sky rocket. Reign in these voracious animals, and reform the current system, and the costs of medical care will come back down to earth, and people will be able to afford it without having the government mandate every aspect of our personal healthcare.

          3. One further point DR.

            Years ago when I worked for the government, our office was issued new, state-of-the-art radios. At the time they cost around $1500 each (this was 20 years ago). Our office established a “radio pool” where everyone assigned a radio could voluntarily pitch in $5 in case someone lost a radio. The agency required us to cover the cost of a lost radio out of our own pockets, unless it was lost in the line of duty.

            The pool was established to defray the cost to any individual in the event of them losing their radio. It took less than a month for someone to lose one, and we all ponied up another $5. There was one individual that did not want to participate, and lost their radio. They paid for the full cost of the replacement out of their own pocket. They subsequently joined the pool.

            The point is, no one was required, coerced, or forced to pay into the pool. It was strictly voluntary. Obamacare and its individual mandate requirement is not voluntary. You either have insurance, or you are forced to pay a penalty (tax). The individual who lost their radio shouldered the burden alone for their neglect. I’m not saying that American’s without insurance should go bankrupt due to an illness. I am simply stating that by forcing, either by making someone do something they care not to do, ie buy insurance, or penalizing them for an in-action, the penalty/tax, is beyond my concept of what principles this country was founded on.

        4. This is a sorry excuse for a president. First he lied about putting the health care deliberations on c-span. ( transparency remember )
          Then we were to pass it before we read it. ( COMMUNIST IDEA )
          then he bribed 2 senators to change there votes. Then there was the bald face lie ( one of many ) it will actually save money. ($%*$*(%($#)
          I guess any lie is O.K if move the agenda forward? You are a shameful American!!!!

  2. One day, deep into the future when the historians write about how Obamacare was born with only a fractional chance of surviving and would have died had it not been for Mary Shelley [read: John Roberts] who was so taken with his own ego maniacal legacy rather than the Constitution, that he threw off his black robe, donned a white surgical coat and gave us a 21st century monstrosity that will survive in a variety of forms, morphing from one election to the next. The footnote to history will read: Bush appointed CJ (which will forever stain the conservative side to match the already stained and sullied progressive side of the aisle).

  3. I began to write about the fallibility of human nature and how the government is designed to check and balance out its weaknesses as well as each governmental branch working with and against the others.

    Then I just felt depressed. The make up of the Supreme Court, Roberts’ rewriting of the text of Obamacare — okaying it as a tax when it was not described as a tax — and why that rewriting didn’t instantly nullifiy the law, it all became too much to view as a flub in the history of our nation.

    The Obama people care nothing about this nation. They want to “fundmentally transform it” to their values by whatever means necessary and do not even worry what might happen when another power-group grabs the reins.

    I am shocked that a Supreme Court Justice would pay any attention to such a campaign.

    1. Actually, the fact that what was called a “penalty” actually WAS described as a tax–that is, the wording of what the penalty actually is showed that it is by nature a tax–is what won the day for the ACA.

      1. Just because you keep spewing the same talking points on this blog over and over again does not make them valid or correct.

        1. Snark, you are as good as your name. But if you want to parse the majority opinion and prove me wrong, be my guest. Sport– I believe the term you are looking for is “Romneycare”. You know… everyone covered, freeriders forced to pay a that’s-the-way-the-cookie-crumbles penalty? Romneycare :)

          1. The difference between RomneyCare and ObamaCare is the people of Massachusetts wanted it. And as a state they had that right. It effects noone outside their state. Nobody outside of Mass has to pay into it or bear the consequences of poor healthcare down the road. Keep in touch. In a few years when one of your grandparents has a stroke and needs surgery to remove the clot. Tell us how successful that surgery was. Sadly, I don’t think they’ll be having it. Medical costs are going to skyrocket. Every country in the world that has universal healthcare is scaling it back. They can’t afford it. If it’s so great, then why do people who can afford it come here??? At least, they used to. It’s a pity the people who see what ‘s coming are going to have to suffer right along with the idiots who are blind to how badly the government run things screw it all up.

          2. John, I don’t know how to break this to you, but Obama was elected on the promise of healthcare reform, which has been an undisguised ambition of the Democrats (and quite a few Republicans) for something like a century.

            This will also shock you: the reforms are popular. SO popular in fact that the Republicans can’t even avoid running a candidate for president who was the first governor in the country to implement them.

            If your prognostications about doomed grandparents is logical, then by all accounts it ought to be happening in Massachusetts already. In fact, why didn’t Newt, Santorum and Bachmann seize the opportunity to run testimonials against Romney from all the citizens suffering under Romneycare and his onerous Romneytax?

            I’ll let you work that out.

      2. By definition, the penalty is not a tax. However, the money you sre required to pay for the insurance is:

        tax: A charge, especially a pecuniary burden imposed by authority; specifically a charge, usually pecuniary, laid upon persons or property for public purposes; a forced contribution of wealth to meet the public needs of a government.

        And if the Administration insist on calling the penalty a tax, then having to purchase insurance is a mandate and unconstitutional.

        1. What’s weird is that the Administration seems set on calling this thing a penalty — it’s the Supreme Court that redesignated it as a tax (with nothing in the text supporting this change) in order to make Obamacare constitutional.

          The Supreme Court “rewrote” the legislation without changing a word when it should have called a penalty a penalty, thrown out the legislation, and sent Congress back to create legislation that is constitutional.

  4. if this is true, he should be impeached. (Roberts, that is. we’re going to take care of Obama’s “impeachment” in November.)

    isn’t suborning a Supreme Court justice a crime?

  5. so the whole country gets a kick in the butt because this guy can’t take the heat?

    btw what , if anything, would happen if solid evidence was found that he was pressured and caved? would he have to leave the bench?

      1. But it wouldn’t even matter. Look at all the scandals this administration has over its head. An act of War on Mexico with gun running, a gun running program that was specifically designed as an assault on the 2nd amendment, voter fraud accusations, questions of eligibility that still haven’t been answered, going against the oath of office to defend the laws of the land, deciding which laws are constitutional or not on his own, etc etc etc And he still has close to 50% approval. The problem is there are to many people will be casting a vote who have no idea about any of the issues. Most couldn’t pass a test on what has happened in the real world in the past 4 yrs.

        1. And the media is so supportive of Obama that the news gets cast in a light that creates support for him. I was reading today about the “anti-immigration” Arizona law. As if wanting to protect citizenry from illegal aliens who compete for jobs and resources has anything to do with legal immigration. If I hadn’t known better, I would have thought that Obama has a big and loving heart and Arizona is filled with American citizens who for some inexplicable reason hate immigrants.

  6. What a vain and selfish man. He sold his soul to the devil and in the process sold every American’s individual freedom and liberty to the state. Why would he do this to his country? So he can be popular at Washington, D.C. cocktail parties?

    1. Most likely, yes. As Keith’s post on Friday pointed out, Roberts has been a part of the Washington, DC elite for thirty years.

  7. These are serious charges to be put upon a sitting Justice. Claiming that he could be swayed by popular opinion of the MSM or a fear of being cast in a bad light by the Obama campaign to such an extent that he ignored the constitutional guidelines is stunning and a cause for an official inquiry.

    This decision to ignore constitutional restraints on the Commerce clause and to interpret the act as a taxing instrument was made by four other Justices and they, too, should be brought forward to defend their positions.
    Their decisions should never be made on political beliefs or how the government might help the poor or whatever the justification, but stickly on interpreting the Constitution to meet modern times.

    All we have now is a confusing, illogical and frightening mess that has already caused some states to refuse to implement the act and defy the government to force them to comply. Surely, this wasn’t the desired result or even the conversation that the Supremes envisioned with their decision.
    Calls for legislative repeal of the law, or even the defunding of it’s implementation will further divide our country.

    The supporters of the act are refusing to call it a “tax’ even though it’s the only way the Supremes authorized it’s implementation. The formerly sad individuals who were not covered by health insurance are now called “free loaders” by the Dems. They’re claiming that this “penalty” is to force the freeloaders to become responsible for their health care and that, too, is not the true description of the act. It’s become a war of whose lie is most agreeable and who’s willing to step up and make this atrocity go away.

    1. I thought it was Roberts alone who deemed it a tax, thereby allowing him to side with those upholding the Act. But I really don’t know. This whole thing is so circular that it borders on the ridiculous. And the Supreme Court should be embarrassed. The Chief Justice, however, seems to fit perfectly in the land of the Emperor who wears no clothes.

    2. “It’s become a war of whose lie is most agreeable and who’s willing to step up and make this atrocity go away.”

      Bingo. Thank you, srdem.

  8. I just love how, if a justice votes a certain way, it is proof for liberals that they are biased-yet if they vote the way liberals want, it isn’t.

    1. Chris Lane of the Washington Post spins it this way: that Roberts is playing a chess game, winning favor with the liberal wing so that he may quietly slide them over to the conservative side, decision by decision.

      Hey, look for those silver linings wherever you can!

  9. Okay, I’ve been over to, and I think all the liberals have gone nuts. More power to the libs to be nuts. Burn, please.
    Waiting for my liberty.

  10. I believe we are living in historic times, as we have reached the tipping point. Two quotes by Alexis de Tocqueville are pertinent here:

    “The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.”


    “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship. The average age of the world’s greatest civilizations has been 200 years.”

    1. And because of the second quote, the founders purposely set us up as a republic, not a democracy. It’s our fault we’re electing politicians who are doing what we think we want versus what’s best for the country.

      1. Yes, sadly it seems to no longer be a representative republic. What we have is an elite ruling class – in all three branches of our government – who think they know what’s best for the masses and that it’s their job to accomplish that rather than representing us.

  11. Nah, I’m going to wait until after the November election. I still think the bottom line of Roberts decision of changing happy to glad was elections have consequences… know what to do :)

    1. Roberts pledged an oath to protect and defend the Constitution. That duty does not include sending political messages to the populous.

    2. That’s putting a lot of faith in the Repub’s ability to win in Nov. It is certainly not a sure thing. I fear the stupids of this country that vote will quite possibly put our wanna-be dictator back in office to finish us off. Even if the Repubs were to get both houses Obama will run roughshod over or around them.

  12. Making the SCOTUS look fair and equitable is NOT a good reason for making a crappy decision.

    Roberts is bed with Obama.

  13. If you think these are dark days, just wait until after the election–the time between November and Jan 20, 2013 when Romney will be sworn in as POTUS are going to be the most dangerous time in our history. All the “lame ducks”–in the WH/Congress/Senate will undoubtedly do irreparable harm to our country knowing full well that they will be out of office come the first of the year and leave us “little people” in a mess that will take years to fix! Keep praying people; keep educating yourselves and your family and friends; stock up on supplies and be ready for anything because these people are so evil, we are afraid that they will resort to anything to destroy America (as evidenced so far).

    God Bless and God Help and God Protect America now more than ever (and unfortunately, the enemy is coming from within our own govt!)

    1. I like the thing that has been circulating on facebook that says simply: Our forefathers would’ve already grabbed their guns and headed to Washington.

  14. While liberals and Democrats howl at “corporate” money “buying elections”, not a word was issued from the liberal media nor Democrats when the media heavily influenced Supreme Court Chief Justice John Roberts decision regarding Obamacare. Double standard if there ever was one!! Theyir own big corporate buddies who control the media made sure that Justice Roberts would not have a snowball’s chance in hell IF he struck down Obamacare on it’s merits- as it should be. It was billed as not a tax, but rather a “penalty”. So, either Mr. Obama Nancy Pelosi and Harry Reed are the biggest liars, most dishonest politicians to hold office since William J. .Clinton uttered his infamous statement and position regarding Monica Lewinski.: “There is not one shred of evidence…” statement or the Obamacare program is illegal. So which is it Mr. POTUS?? A tax or illegal piece of legislation???

  15. Conjecture is not evidence. Your headline and your lead says that there is “new evidence” that John Roberts was pressure by Obama into switching his vote.

    Really? What is that new evidence? Where is there any evidence at all that Justice Roberts succumbed to White House pressure?

    Just because he likely changed his initial vote certainly does not mean that he was pressured into doing so by President Obama. There are several possible explanations for a change in an initial vote, ones that have little or nothing to do with pressure from the President.

    The most likely scenario is that, in spite of his initial inclination in ruling on the mandate, that he thought through those aspects of the case raising questions about the need to exercise judicial restraint, and that he eventually came to believe, on balance, that this case required such an approach. Perhaps one of his clerks wrote a particularly insightful memo or even a series of memos, ones that finally convinced him that he needed to reconsider his initial approach.

    It is his job, where appropriate, to exercise judicial restraint. And in the appellate review process, it is not just permissible, it is absolutely the appropriate action for a judge or justice to alter their opinion if they become convinced of the validity of an argument that runs counter to their initial reaction — in this case, that the act could be upheld as a tax, rather than as a exercise f congressional power pursuant to the “commerce clause” or “necessary and proper” clause.

    The Court is the least democratic of our political institutions. One of the strongest arguments that conservatives have championed for decades is that judicial activism erodes the actions of the political branches in an impermissible manner.

    The proper way to get rid of ObamaCare is to win the election in the fall, and for the new Congress and the new President to then do so in the appropriate manner — by repealing it.

      1. MT, you have obviously missed my point entirely. That probably should not come as much of a surprise to anyone who has even taken a cursory glance at the content of your website! Wow! All I can say is that you appear to have a very fertile imagination, though I can assure you that I’ll never know the full extent of it because I have no intention of being suckered into hitting your “tip jar” just to read your wild stories!

        Of course, even you don’t seem to have settled on your favorite explanation for this opinion as yet.

        But just for the record, “Stay tuned” is not evidence either. In fact, standing alone, it tends to suggest an acknowledgement that there is no articulable “evidence”, new or otherwise, that Roberts was somehow bullied into voting the way he did.

        That does not prove that it didn’t happen — there are many possibilities. It is just one possibility among many; and, as yet, it is unsupported by any credible evidence.

        Now, I have little doubt that the real and imagined circumstances surrounding this case will likely spawn years of fanciful and conspiratorial explanations, perhaps ones that you will play a part in launching!

        And, unfortunately, there is indeed a sucker born every minute, so you will no doubt be able to capitalize on that by claiming to be hiding the “real story” behind your pay wall.

        Keith wrote this post claiming in the title and the lead that there is “new evidence” that John Roberts was bullied by President Obama into ultimately casting a vote allowing ObamaCare to survive a constitutional challenge.

        But Keith offered no “evidence” at all of any such thing. He merely cited a CBS report strongly suggesting that Roberts had at some point shifted his vote on the question of constitutionality, finding that the statute could withstand constitutional scrutiny as an exercise of the taxing power — an argument that was indeed made to the Court (as an alternative argument) by the Solicitor General of the United States on behalf of the Obama Administration.

        My response to Keith was to challenge his argument by pointing out that an exercise of judicial restraint is actually a duty on the part of a justice or a judge, in appropriate circumstances, not evidence of a strained theory, without a lick of proof, that the Chief Justice somehow caved in to Obama pressure.

        And, in an earlier comment also posted on this site, I linked to a longstanding and highly respected judicial precedent, which was the first cumulative articulation of several principals of judicial restraint, including ones addressing federal statutory construction — the concurring opinion of Mr. Justice Brandeis in ASHWANDER v. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288 (1936).

        Generations of law students and others have been taught about the incontrovertible influence of that opinion in formulating the doctrine of judicial restraint. For starters, here key portions of two of those “rules” via Justice Brandeis:

        4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
        . . . .


        . . .
        7. ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’
        . . . .

        1. Thanks for your thoughtful comments, Tronchilis. I think you are confusing evidence and proof. There is evidence, circumstantial evidence, but evidence, that pressure got to him, and I mention it in this and my previous article. I’m not saying it’s proven.

          Your Brandeis quotes in this case presuppose that there is a sound basis for the argument that this is a tax. I disagree.

          1. Thank you for your thoughtful rejoinder, Keith.

            However, I’ll stick with my assertion that the claim that Roberts changed his vote during the deliberative process is clearly not evidence that he was somehow pressured or bullied into making that change by Obama.

            I believe that it was, and is, mere conjecture.

            In the absence of more — such as supporting testimonial, or written proof — there are literally dozens of possible reasons, many of which could be entirely legitimate, and others which would be utterly illegitimate, for making a change in ones’ position as an appellate judge during the process of deliberation.

            All of them certainly cannot be true, so taking one presumed “fact,” and claiming, without more, that it is somehow “new evidence” of just one of those notions, is in my view inapt and inappropriate.

            My point is simply this: Changing one’s vote during that deliberative process in appellate cases is neither per se improper, nor even particularly unusual where further appellate research or consideration of the law or equities suggests that the change is merited. I’d say that it is a duty on the part of a judge to do so, if he or she becomes convinced of those merits.

            In cases where there is a strong and split of opinion amongst the appellate judges or justices following oral argument, they all try very hard to convince one another of the merits of their initial views, as they exchange preliminary opinions. In fact, they often spend a good deal of time referencing and tearing one others’ opinions apart if they are able. Quite frequently, appellate opinions are adjusted accordingly during the process.

            It is also important to understand that Roberts did not change his opinion on the lack of merit in the Obama Administration’s position regarding the permissible scope, or “reach” of the “Commerce clause,” nor of the “necessary and proper clause,” as a “constitutional basis” for upholding the legislative scheme in ObamaCare.

            If the CBS story is accurate (and I assume that it is generally accurate), he apparently became convinced, during the review process, that the taxing power was a sufficiently broad enough basis to uphold a broad policy decision, one that was made by the two political branches; and, further, that because of abiding principals of judicial restraint which he has been long known to hold, Roberts felt compelled to vote to affirm on that limited basis.

            If there were any evidence that he changed his vote because he had been bullied (as you have presumptively concluded), or been threatened in some way, or blackmailed, or had done so for personal gain, I believe that any of those would form the basis for an impeachable offense. Making any such allegations without any credible evidence is, in my opinion, highly irresponsible.

            Finally, I cited the specific language from Brandeis opinion in Ashwander because over the decades it has been considered, both by the Court on multiple occasions, and by respected commentators too numerous to list here, to be the seminal opinion initially cumulating the various grounds for the exercise of judicial restraint in constitutional litigation. Literally every law student in this country over the past 7 decades or more has been exposed to that opinion in the course of learning Constitutional law.

            Finally, your “sound basis” assertion regarding the Brandeis formulation seems quite clearly inapt. Again, he was specifically quoting from a prior Court precedent for the assertion that:

            “. . . even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” (my emphasis)

            Judicial restraint is borne of the recognition that the Court is the least democratic of our branches of government, and that the political branches — the Legislative and the Executive — are given the constitutional responsibility of making federal policy decisions. Sometimes what they do is unwise — in my view, ObamaCare is a prime example. But the court is not intended to be an “ongoing Constitutionsl convention.”

            In my view, Roberts was not succumbing to pressure or bullying from Obama. There is no evidence of that.

            And I’d also say that, even though I would probably not have voted the way he did, I do get why he did it.

            I just think attribution of such base motivation to him is not supported in the slightest by anything I’ve seen so far.

          2. At the Volokh Conspiracy, Law Professor Jonathan H. Adler has just posted a new piece on the Roberts NFIB v. Sebelius opinion, dated July 9, 2012, in which Adler traces what he sees as a real consistency to the judicial restraint approach that Roberts took in the healthcare case, and has taken in other cases as well since his appointment to the Court, in finding a “saving construction” for a statute where the alternative was to strike it down on constitutional grounds.

            Adler pointedly notes that while he does not agree with Robert’s opinion in the case, he nevertheless concludes that we can certainly understand what he was doing.

            That is pretty consistent with what I have previously said in other comments posted on this thread.

            From Adler’s post:

            . . .
            “I do, however, think many of the Chief Justice’s critics have failed to recognize how this opinion fits with what we’ve seen from the Chief in his first several years of the Court. Specifically, I believe we can explain Roberts’ vote in a way that is quite consistent with his behavior in other cases and that does not require ascribing political motives to him. While I am not persuaded by Chief Justice Roberts’ opinion, I believe it squares with his overall jurisprudential approach . . . .”

            And Adler concludes:

            When John Roberts was nominated to the Supreme Court, many predicted he would be a conservative judicial minimalist. That is, he would have a generally conservative outlook, but would try to decide cases narrowly, avoid disturbing precedents, and defer to the other political branches. Since becoming Chief Justice, this is what it appears Chief Justice Roberts has tried to do. From this perspective, his opinion in NFIB v. Sebelius makes sense. This doesn’t mean I agree with Chief Justice Roberts’ approach — in NFIB I certainly don’t — but I think we can understand it.

  16. I see this as just the opposite. He started in the expected position – of course he did – he’s an intelligent man and cares about this country – and Obamacare is a kill shot to the heart of it – of course he was against it. But I believe he saw a better way to fight it – more of a judo move than karate. He saw how he could use the enemy’s strength AGAINST it – and he did so. Sometimes a seeming surrender can lead to a resounding victory. But those kinds of moves are seldom recognized until long after the vilification is over….. just sayin.

    1. Mellie, I am thinking the same way. I can’t put my finger on what exactly Roberts game plan is, but I think there is more that isn’t being seen yet. Time will tell.

    2. The “better way to fight it” was to take his own kill shot and end it!

      It’s too convoluted to overturn otherwise…Romney has to win, the Republicans have to pick up Senate seats, etc. etc. Also, with all the front-end implementation necessary, time works in Obamacare’s favor.

      Roberts should have ruled on the case in front of him (Commerce Clause)…if he was going to invent a way to keep the law in tact (the tax argument) just so the people could decide at the ballot box, the Court should have never taken the case in the first place.

  17. I don’t really care. It’ll be repealed anyway. Whether Roberts turned on us or not is immaterial. Businesses will either freeze hiring and/or down size which will weaken the economy as a direct response to Obamacare. Which will cause unemployment numbers go up. If unemployment numbers don’t go up it will only be because legitimate claims are being denied, So that Obama can claim unemployment numbers have gotten better. either with lay squarely are the president’s feet Voters will see it as Obama not only costing American jobs,but also making it harder for families to make ends meet.

  18. …interesting discussion here, better than the usual summer read, if it weren’t so very serious.
    One of the very disturbing pieces of this decsion on obamacare is the number of federal employees it will add to the o’s civiian army of voters.

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  20. I think we’re getting our knickers in a knot over a smokescreen. Individual mandate(aka tax) aside, the real issue in the decision is the illegality of forcing states to include ACA in Medicaid. FYI, the state of Massachusetts budget includes 54% for Medicaid…what do you think ACA would do to state budgets if it hadn’t been found to be illegal? This is the part of the decision that has the more significance, imho.

    1. Thank you for posting this idea. I need to learn more about it — and its impact. This will prompt me to start searching and reading.

      1. A — So far, 6 states with GOP Governors have rejected this Medicaid extension. Brief and informative article at NRO by Michael Tanner.

    1. Yeah, I agree. I might have said “jerk” or “possibly paid synchophant,” but if the overall message is that Ray’s posts generally do not seem worth reading, I agree.

  21. Ive been thinking about this since it happened, What if CJ Roberts did this as a way of ensuring that the Republican candidate gets the vote come November, If it sets off the firestorm that it has and Romney actually does what he says, then it wont matter what the court has to say and it will be repealed anyway, its a gamble but its a better bet, than just saying unconstitutional and all the liberals going nuts, It will not happen quietly but we will take back the white house and all of congress because of it.

  22. The way the the Affordable Care Act was contrived, the way the the Affordable Care Act was sold, the way the Affordable Care Act was enacted, and the fact that the Affordable Care Act was unconstitutional, ON ITS FACE SHOULD HAVE BEEN STRUCK DOWN in its entirety. The justices should not be divided as liberals and conservatives, they are supposed to interpret law. What the Roberts Court did was set precedent and forever tied a noose for the rest of America, at the hands of tax hungry career politicians who could care less if there is food on your table.

  23. Just knowing that he let others define his decision just shows me he doesn’t stand for anything. Plus with him saying that he is sensitive to what the public thinks about the court, that is just a weak excuse because he would know that we would have been very happy with his decision to vote it down rather than let it become law.

  24. It’s so simple. The Chicago thugs threatened his family. What else could he do? Nothing else really explains Roberts’ contortions to uphold that piece of legislation.

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